able doubt, that the conduct in question is against the interests of society. Till then the matter should be left to ethical discussion, to the pressure of public opinion and its allies. Gradually experience works such questions out and brings the community to substantial unity of judgment. Two notable examples have occurred in recent years. Pugilism and the lottery not many years ago were in the free field, outside the law, subject only to public opinion and ethical education.

The law enters only where proof is possible.-Where the facts are difficult of proof, the law is equally excluded. Neither is it adapted to deal with sins of envy, jealousy, overeating, vices of secret character, etc. In the field of evidence the law draws broad lines. It will not deal with evils that in their nature are generally incapable of clear proof. It puts up the bars against hearsay evidence. It requires a witness to tell what he knows of his own knowledge, not what he infers from what he has heard others say. It requires the best evidence the nature and circumstances of the case permit.

388. STATUTE LAW AND COMMON LAW

A1

We commonly speak both of law and of laws, and these terms, though not used with precision, point to two different aspects under which legal science may be approached. The laws of a country are thought of as separate, distinct, individual rules; the law of a country, however much we may analyse it into separate rules, is something more than the mere sum of such rules. It is rather a whole, a system which orders our conduct; in which the separate rules have their place and their relation to each other and to the whole; which is never completely exhausted by any analysis, however far the analysis may be pushed, and however much the analysis may be necessary to our understanding of the whole. Thus each rule which we call a law is a part of the whole which we call the law. Lawyers generally speak of law; laymen more often of laws.

There is also a more precise way in which we use this distinction between law and laws. Some laws are presented to us as having from the beginning a separate and independent existence; they are not derived by any process of analysis or development from the law

Adapted by permission from W. M. Geldart, Elements of English Law, pp. 7-13. (Henry Holt & Co., Williams & Norgate.)

as a whole. We know when they were made and by whom, though when made they have to take their place in the legal system; they become parts of the law. Such laws in this country are for the most part what we call statutes; collectively they are spoken of as Statute Law. On the other hand, putting aside for the present the rules of Equity, the great body of law which is not Statute Law is called the Common Law. The Common Law has grown rather than been made. We cannot point to any definite time when it began; as far back as our reports go we find judges assuming that there is a Common Law not made by any legislator. When we speak of the law we are thinking of the system of law which includes both Statute and Common Law, perhaps more of the latter than of the former. A rule of the Common Law would rarely, if ever, be spoken of as a law.

1. In spite of the enormous bulk of the Statute Law, the most fundamental part of our law is still Common Law. No statute, for instance, prescribes in general terms that a man must pay his debts or perform his contracts or pay damages for trespass or libel or slander. The Statutes assume the existence of the Common Law; they are the addenda and errata of the book of the Common Law; they would have no meaning except by reference to the Common Law.

2. On the other hand, where Statute Law and Common Law come into competition, it is the former that prevails.

3. How do we know the law? Here there is a great difference between Statute and Common Law. A statute is drawn up in a definite form of words.

On the other hand, we have no authoritative text of the Common Law. There is no one form of words in which it has as a whole been expressed at any time. Therefore in a sense one may speak of the Common Law as unwritten law in contrast with Statute Law, which is written law. Nevertheless, the sources from which we derive our knowledge of the Common Law are in writing or print.

BI

The Common Law has passed or is passing through at least three distinct stages of economic assumption in its dealings with industrial affairs and the relations of capital and labour. There was the mediaeval stage in which every man was supposed to have his proper state in life, and the law had to see that he was kept in it. We cannot

Taken by permission from Frederick Pollock, "The Genius of the Common Law," Columbia Law Review, XIII (1913), 10-II.

fix a point of time when this conception of social welfare ceased to be officially accepted. Official and judicial opinion are rather apt to lag behind the general movement of ideas, but they do move, and older and younger colleagues are not likely to move at the same pace; just as, in dating a manuscript, one has to remember than an ancient scribe may be writing the hand of the last generation at the same time that a young one is eager to display the very newest graces of penmanship. We shall not be far wrong in placing the period of transition between the beginning of the nineteenth century and the reforms of 1832. Next came the reign of utilitarian individualism, under which unlimited competition was to be the universal regulator, and it was thought that the state ought not to hinder this beneficent operation of human nature and could do nothing to help it beyond removing artificial obstacles. In the faith of that doctrine our fathers (I mean the fathers of men now growing old) lived through their active years, and their sons were brought up in its atmosphere. It prevailed for approximately half a century. Then, well within the memory of men not much past the prime of life, it became a tolerated, indeed a probable or plausible, opinion, that the state was abdicating its functions by remaining passive, and should not only leave the road open for ability, but give assistance in suppressing unfavorable external conditions and equalizing opportunities. The present generation is full of this spirit, and its power seems likely to increase for some time yet. It is not for me to discuss the merits of these different ideals or to point out the perversions and excesses incident to each of them.

389 LEGAL INTERVENTION IN BUSINESS1

Legal intervention in business analyzed.—A business man may be thinking of taking some action, or he may be inactive and someone may be trying to get him to act. To know whether the action contemplated or requested shall be taken requires that the business man know what rules of law are applicable to the act in question. After he has decided whether or not the action will be possible or profitable he must yet decide what the legal consequences of his acting or refusing to act will be. Depending upon the nature of the act involved, the law may say to him one of three things: (1) "You shall not do it." (2) "Do it or not, as you like. If you decide to do it, I will help you.' (3) "You shall do it."

Prepared by H. E. Oliphant.

Prohibitive intervention. The law often intervenes in affairs of men to prohibit certain acts and conduct. The thing prohibited may be so detrimental to the public if permitted that the public, through its organized representative, the state, labels it criminal and punishes the offender with death, imprisonment, or fine. The principal crimes have been classified as follows: (1) Offenses against the government, including treason, bribery, extortion, maintenance, perjury, and contempt; (2) offenses against the public peace and welfare, including affray, riot, libel and slander, nuisance, and conspiracy; (3) crimes against religion and morality, including blasphemy, adultery, bigamy, and kidnapping; (4) offenses against the person, including assault, homicide, and robbery; (5) offenses against property, including arson, burglary, larceny, embezzlement, cheating, forgery, and counterfeiting. Those crimes of prime importance to the business man are: libel and slander, conspiracy, embezzlement, cheating, and forgery.

Besides conduct contrary to morals, that contravening public policy is condemned, though not of sufficient seriousness to constitute a crime. Reprehensible conduct, short of crimes, usually takes one of two forms: torts, or illegal contracts. Public policy requires the protection of certain interests. They may be the interests of the individual, of society as a whole, or of the state as a representative of society. The law intervenes if I insist upon mashing your nose or destroying your reputation by defamation. Marriage-brokers' contracts and contracts or gifts whose effects are to restrain marriage are not valid. I must not make a highway of your lawn or otherwise lessen the value of your enjoyment of any property that is yours. One cannot enforce a promise to pay a bribe or a contract to lobby for a legislative measure. The social interests which are protected are enormous in number and happily increasing. To take examples from a single field, that of economic interests, the body of law rendering futile contracts in restraint of trade is both enormous and adolescent, while, to the question what means are fair and foul in the bargaining struggle between employers and employees and in contracts between trade rivals, the answer which the law will finally return will doubtless be as complex as it is now uncertain.

There are many ways by which the law's disapprobation of conduct is expressed. The most obvious one is to give the public a remedy in the form of a criminal prosecution, as was done by the Sherman Act. More effectual, because put into the hands of the

individual who has been harmed, is its civil action for damages. To enforce contracts, elaborate and expensive legal machinery has been provided. In a multitude of cases the law makes real its dislike of certain conduct by refusing the wrongdoer the use of this machinery. Promotive intervention.-The second type of legal intervention is promotive in its purpose. To promote the exchange of commodities, for example, certain promises concerning it are sanctioned by the law and their performance is made obligatory. To promote commerce the law permits and aids a railroad to take private property with or without the owner's consent. As the examples indicate, promotive legal intervention in business takes two forms, which may be denominated (1) intervention by legal sanctions, and (2) intervention by legal endowments.

Incidentally for the good of the individuals concerned, but primarily for the good of society as a whole, the law sanctions among other things promises which people have procured. What promises the law by its sanction requires to be performed depends both upon their content and form. The promise must relate to something of general importance to be thus dignified by the law. In general, promises relating to trade and commerce are binding. Promises to dine are not. Promises to marry are. Again, I may want to make a promise to you without making myself liable to have to perform it. It is therefore desirable that we shall be able to make our promises binding or not as we wish. The difference is one of form. Unless the promise takes a certain form the law will not enforce it.

Ordinarily, I cannot be compelled to sell property which I own. It cannot be taken from me without my consent. Yet a corporation, in undertaking to build a bridge or a railroad, may need land which I own. To such corporations the law-makers may give the privilege of taking my land without my consent. A group of men desire to form a business organization that will continue though one of them dies, and for whose obligations the members will not be liable beyond the amounts which they have put into the business. These powers and privileges are often conferred by the legislature upon groups of individuals. I may not stand at the edge of a river and require each person who crosses to pay me for the privilege unless I am given authority to do so by the state. Persons or firms are often permitted to erect bridges or maintain ferries and to lay a common charge upon the public for services rendered. Frequently, during the period of a strong policy to aid internal improvements, the different states